Kpud Seeking Dismissal Of $1.6m Dnr Fire Cost Claim

Attorneys for Public Utility District No. 1 of Klickitat County and the Washington Department of Natural Resources will be in Klickitat County Superior Court next Tuesday to argue for and against KPUD’s motion to dismiss the DNR’s complaint for firefighting costs related to an August 2010 wildfire near Lyle.

The hearing on the motion for dismissal has been set for 9:30 a.m., before Judge Brian Altman. The DNR, under the state Forest Protection Act’s Fire Cost Recovery statute, is seeking to recover more than $1.6 million in fire suppression and investigative costs from KPUD for the Old Highway 8 Fire that originated on Aug. 26, 2010, near KPUD overhead power lines during a high-wind event in the Columbia River Gorge. The resulting fire burned approximately 2,100 acres of grass and forest land, and damaged or destroyed several structures before firefighters with the DNR and other agencies got it under control and extinguished it.

KPUD — through its attorney, Daniel W. Short of Paine Hamblen LLP, of Spokane — is seeking a court order dismissing the DNR’s complaint “for failure to state a claim upon which relief can be granted” and a finding of law “that KPUD cannot be obligated [pursuant to the Fire Cost Recovery statute] to reimburse plaintiff for the expense of suppressing and investigating the Highway 8 Fire” because KPUD is a municipal corporation to which the statute doesn’t apply.

Moreover, KPUD argues it can’t be held liable under the Fire Cost Recovery statute — which allows the DNR to file a lien for its expenses against any property of the person, firm, or corporation found liable under the law — “because public property generally cannot be subject to a lien.”

The Fire Protection Act requires DNR to investigate the origin and cause of all forest fires to determine whether either a criminal act or negligence caused the starting, spreading, or existence of a fire. The Fire Cost Recovery statute authorizes the DNR “to collect reasonable firefighting expenses and investigative costs from any ’person, firm or corporation’ whose negligence is responsible for the starting or existence of a fire which spreads on forest land,” the DNR stated in its response to KPUD’s motion to dismiss.

The DNR alleges in its 11-page response, “The fire was caused by a hazardous double-topped ponderosa pine tree that failed, causing one of the tree stems to collapse onto electrical lines owned, maintained, and operated by KPUD. KPUD negligently failed to identify and remove the hazard tree before the fire despite the fact that it knew, or through the exercise of reasonable diligence should have known, of the tree’s existence and the hazard it posed to KPUD’s power lines.”

The tree in question, according to KPUD, stood 30 feet outside the right of way for KPUD’s power lines, on private property on the south side of Old Highway 8.

The DNR says it incurred fire suppression and investigative expenses from the Old Highway 8 Fire totaling $1,607,553, and initiated an action to recover those costs under the Fire Cost Recovery statute after KPUD “refused to pay any portion of the costs claimed.”

According to the DNR, the state has a compelling policy reason to apply the Forest Cost Recovery statute to governmental entities like KPUD: To limit forest land fires negligently caused by any entity, public or private.

“[The] state would have no reason to investigate the origin and cause of forest fires caused by public utilities if such utilities were not subjct to liability for negligently caused fires under the Fire Cost Recovery statute,” wrote Michael J. Rollinger, lead attorney for the state. In refuting a KPUD claim that the DNR is bypassing legislative authority through the judicial branch, Rollinger said, “[The] state is merely implementing the legislative framework that required KPUD to be held accountable for a negligently caused fire.”